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On a Jewish and Democratic State

Jan 26, 2011

Introduction

0isra.jpgIn his speech at the Aqaba summit on 4 June 2003, Sharon called for the recognition of Israel as a Jewish state. President George Bush echoed this demand in the same venue. Since then, it has been reiterated and reaffirmed on numerous occasions, not least of which was in the Annapolis conference in November 2007, in a speech by Prime Minister Ehud Olmert in front of the Arab delegations. The effect of such actions was to turn the Zionist definition of Zionism and its mission into a concept in the international diplomatic lexicon.

President Obama has cited this definition of Israel a number of times in his speeches. The most notable instances were in his speech to AIPAC (the American Israel Public Affairs Committee) on the eve of the presidential elections in 2008, and, most recently, in his address to the General Assembly in September 2010.[1]

Undoubtedly, the immediate practical aim of transforming such a national self-definition into a concept in international diplomacy, specifically in the context of the so-called "peace process," is to totally obviate the right of return for Palestinian refugees, before it is even broached diplomatically, and to diminish the international legitimacy of this right by conferring ultimate priority on a another principle agreed upon by the major players, this being "two states for two peoples." Acceptance of this principle is a clear demonstration of sympathy with Israel's demographic fears, even with respect to its own Arab citizens. Moreover, recognition on the part of the international community and the Arabs of the Jewishness of the state would inherently imply their rejection of the concept of a "state for all its citizens" as applied to Israel. This concept defies the notion of the Jewishness of the state as it operates on the ground in Israel, and irreconcilably juxtaposes the ideology and practice of the Jewish state against the principles of equality and democracy.

But there is a deeper level to the Israeli drive to wrest from the Arabs a recognition that extends beyond the acceptance of the state. It wants them to recognise its Zionist creed, which is to say it wants to transform a prerequisite for a practical diplomatic settlement into a concession to its ethical and historic legitimacy. Arab compliance would be tantamount to an admission that Israel had been right all along on the matter of Palestine, and that the Arabs had been wrong. In addition to negating the Palestinian right to return, such a recognition would hand Israel a huge political, cultural, and moral victory. On top of gaining legitimacy for the tangible existence of the state, it would win legitimacy for Zionist culture, ideology and political discourse.

A Jewish and democratic state

In a letter to Moshe Sharett in 1954, Ben Gurion wrote, "We must not separate religion from the state. The fate of the state of Israel and the Jewish people is one."[2]

The intimate relationship between religion and the state in Israel, as compared to other modern societies, stems from the total mutual identification between the religious and national affiliations in Zionist thought. It is little wonder, therefore, that Ben Gurion, in this quote and others, uses the term "Jewish people" synonymously with the Jewish religion. It is also in this sense that the Israelis generally use the term "Am Yisrael" (the people of Israel). One can, of course, point to other instances of a strong connection between religious and national affiliations. Take for example Polish nationalism and the Catholic Church, or the cases of Armenian and Greek nationalism and the Armenian and Greek Orthodox churches. On the other hand, there are cases in which the national affiliation has so disassociated itself from the religious one as to engender a virtual antagonism between the two. A case in point is Arab nationalism, which arose by distancing itself from the Ottoman concepts of the umma, (the Islamic nation) and the milla or minority religious community under Ottoman rule. Still, most emerging nationalities borrowed religious symbols as a means of affirming their particular identity during the process of concretion. Yet, for the most part these symbols were secularised in national thought, or religious history, and feelings were nationalised retroactively. In other words, the history of the religious struggle was subsumed into the national history by virtue of the latter narrative being projected onto the past. Certainly, in Pakistan and Armenia, the religious or sectarian affiliation was secularised in this manner, establishing a wide imagined community that could serve as a basis for creating a state, disastrous as the consequences were. 

Israel's chief distinguishing trait is that it is a colonial implant based on a settler drive and expansionist design inherently inimical to the indigenous inhabitants and neighbouring countries. But as important as this property is to what makes Israel unique, the Israeli relationship between religion and nationalism stands markedly apart from that of the first state after Israel to be founded on the basis of religious identity, namely Pakistan, and from that of a state which reconstructed itself on religious doctrine, specifically Iran.

First, Israel is the only state that puts into practice a complete correspondence between religion and national affiliation, and, hence, entitlement to citizenship solely by virtue of that religious affiliation. Religious instruments and criteria are used to determine whether one is affiliated to that national identity, and it is sufficient to convert to Judaism in order to become ethnically Jewish and secure the right to obtain Israeli citizenship immediately.

Second, only in the case of Israel did a secular movement, Zionism, employ ancient scriptural narrative as its sole justification for nationhood and the right to self-determination. The secularist Zionist creed rests its claim to the right to the land on the Old Testament account of the covenant.

Third, Israel does not just claim the right to ascertain the Jewishness of Jews, or the correctness of the procedures of conversion in order to confer Israeli citizenship. It also claims the right to deny the Jewishness of Jews who convert to another religion. The Israeli "law of return" does not apply to these people.

Religion did not just give nationalist Zionism terminology, land, and the Torah. More importantly, it gave it its ethical dimension, complete with all its self-affirmative cultural and historical ramifications.[3] Since the Basel Programme, adopted in the first Zionist congress,   religious expressions have been used as the building blocks for that movement's core agenda, the establishment of an entity that would be at once a state for the Jews and a Jewish state, or as the programme phrased it: "to create for the Jewish people a national home (heimstatte) in Eretz Israel." The terms "Jewish people" and "Eretz Israel" come straight out of the Torah. The prominent secularist Zionist leader, Ussishkin, employed the scriptural argument quite early on. In a speech to the Versailles peace conference on February 27, 1919, he said, "The historic desire of the Jewish nation is to be returned to its [territorial] borders[4] and to restore the land that was divinely promised to the children of Israel 4,000 years ago."[5] 

The Zionist movement did not just rest its case on Biblical narrative. Implicitly in its internal spirit, and explicitly in its political doctrine and discourse, as well as in everything that drives and strengthens its powers to organise and mobilise, it incorporated Jewish messianism and the concept of redemption (hage'ulah). Indeed, it applied the term "redemption of the land" (ge'ulat ha'adma) to signify the transfer of property titles from the Arabs to Jews. Moreover, such terms as galut (exile) and ge'ulat[6] were turned into codes and clarion calls in the processes of disseminating and promoting Zionist thought, stimulating recruitment into the Zionist movement as a latter-day messianic movement that turned an entire storehouse of religious terms, ideas, symbols, yearnings and historical aspirations associated with redemption into the service of a political nationalist end.

It was precisely this re-contextualisation of religion that, at first, sparked antagonism between Zionism and Jewish orthodox trends, which regarded Zionism as a counterfeit messianism, or a kind of spiritual charlatanism. Yet, the very source of antagonism eventually became a source for consolidating the bond between Zionism, religion, and religious trends. The concept of deliverance furnished the spiritual connection that secured Zionism's religious stature. At the same time, no one entity, including the Balfour Declaration, the British mandate, and the state of Israel, came up with any but the religious definition of Jewish and the Jewish people. Nor was it long before Orthodox Judaism assumed the task of patrolling the boundaries of what constituted the Jewish people in an array of Zionised conservative and orthodox religious parties. Ultimately, Zionism never could come up with an alternative to the religious affiliation as the basis of the national bond.

It is difficult to trace the course of Israeli democracy as it wove its way between the internal democracy of Zionist institutions, the ideological plurality within them, and the legal arrangements derived from the legacy of the British mandate. Undoubtedly, "Israeli democracy" has developed over the past sixty years as the result of the interaction between diverse social, political and legal factors, a process we might sum up as the transition from a doctrinally and militarily mobilised settler society to a modern consumerist capitalist society, albeit one still governed by nationalist and ideological tasks, especially those related to the colonialist conflict with its surroundings. Merely to illustrate here,[7] some of these factors are:

  • 1. The rising level of education among the classes and elites of the Yashuv (the Jewish inhabitants in Palestine organized as a Jewish Zionist community).
  • 2. The growth of the middle class, and the spread of education with the gradual development of democracy.
  • 3. The ebbing of the colonial, settler-soldier agrarian economy.
  • 4. The growth in the influence and imitation of western culture (in the process of creating a distance between Israeli society and the Arab region with which it is in a state of war) among a public the majority of which hailed from Eastern Europe and the Arab world.[8]
  • 5. The capacity of the system to absorb the effects of the dialectic in the separation of powers, especially judicial autonomy, and the evolving dialectic between the individual, civil society, and the state.

Regardless of how one dissects origins and sources, on the one hand, and evolutionary processes, on the other, the pieces converge again into the same mould at every new juncture. The evolution of Israeli democracy cannot escape its Zionist context, which constantly reproduces itself at a higher level after every crisis. The Zionist consensus that the aim of the state, as a state for the Jews and as a Jewish state, is to "ingather the diaspora," and assimilate Jewish immigrants, together with the repercussions of this consensus, form the essence of "Israeli democracy." It is what furnishes the ingredient for harmony, compensating for the lack of a democratic history and shared national origin. The aim and means of building the nation create the necessary unity and cohesion needed to sustain pluralistic democracy among the Jews, and to prevent them from disintegrating into civil war of a sectarian nature, for example.

Zionism, not citizenship, is the mould that shapes Israeli democracy. It is simultaneously the impediment to its development. In times of crisis, in particular, it becomes flagrantly tribalistic, underscoring the reality that Israeli democracy is, in fact, the democracy of the tribe.

In the case of Israel, then, it is impossible to separate the Jewishness of the state from the nature of its democracy.  This has nothing to do with some binding legal text and everything to do with the history of the creation of this polity, its aims and motives, and the process of nation-building in which this entity served as a tool. Democracy was introduced as the form of government in the Jewish state, and evolved as a product of how the nascent "Jewish nation," at whose core resides this polity, managed its affairs in the Jewish state.

From the legal standpoint, the two-part attribute, "Jewish and democratic," was only affixed to the "state" in the Basic Laws, which have a constitutional function, relatively recently. For example, Basic Law: Human Dignity and Liberty, adopted in 1992, states in Section 1a: "The purpose of this Basic Law is to protect human dignity and liberty, in order to anchor in a Basic Law the values of the State of Israel as a Jewish and democratic state." The wording is echoed in Basic Law: Freedom of Occupation, which was adopted the same year and which states in Section 2: "The purpose of this Basic Law is to uphold the freedom of occupation, in order to anchor the values of the State of Israel as a Jewish and democratic state in a Basic Law."

One might wonder why it took so long for the Israeli legislature to codify this definition of the state, which has gradually become something of a sacred mantra in the Israeli legislative lexicon, and the "recognition" of it, which has become obligatory for any political party seeking to run in parliamentary elections. Certainly, foreign leaders must have been similarly taken aback when suddenly asked, during the negotiating process, to affirm that Israel is a Jewish state. The Palestinians never asked Israel to recognise them as an Arab state. The nature of the state is determined by its own people, not by declarations on the part of leaders of other nations.

On the other hand, nothing should surprise us anymore when it comes to the Israel-US relationship and the relationship between the Israeli state and its Jewishness. When the Palestinians rejected the demand, since conceding would constitute a public renunciation of the Palestinian right to return, prior to the start of negotiations no less, Washington stepped in to espouse the demand in order to dispel Israeli anxieties. Speaking in the Aqaba conference on June 4, 2003, President Bush said, "Today, America is strongly committed and I am strongly committed to Israel's security as a vibrant Jewish state." The Jewishness of Israel thus became an international question.

Long before George Bush, the UN partition resolution called for both a Jewish state and an Arab state in Palestine. This resolution served as the basis in international law that Israel seized upon to proclaim itself an independent state. Today, six decades after it established itself upon the ruins of the Palestinian people, it is no longer satisfied with being recognised as a sovereign state; it wants recognition for its national and/or religious character.

This latest demand, or perhaps decree would be more accurate, was voiced as a negotiating condition for the first time in the context of the Israeli cabinet's deliberation over the "roadmap," which had been formally submitted to Israel on 30 April 2003 and the Israeli government finally got around to discussing on May 25. In fact, that government never did approve the American plan. In the official statement it accepted "the steps set out in the roadmap" and attached a list of 14 "reservations." Even then, this decision was only adopted by a vote of 12 out of 19 cabinet members. The sixth of these reservations stipulates that the Palestinians must "waiver any right of return for Palestinian refugees to the State of Israel." The following sentence, which was placed between parentheses, furnished the practical translation of the previous one: "(The Palestinians must make declared references to Israel as a Jewish state in the introductory statements issued by leaders at the beginning of the roadmap.)" This is precisely how the Israeli government worded its response to the "roadmap." It was the first time that an Israeli government couched its demand for recognition in this manner. Recognition of the Jewishness of the state became one of the Israeli conditions for accepting the roadmap that had been drawn up by the Bush administration, and that the Israeli government had never approved in the first place, contrary to what people have generally been led to believe.

Clearly then, Israel's demand for the international recognition of its Jewishness emerged in the context of its demand that the Palestinians relinquish the right to return as a precondition for talks, rather than in the context of the partition resolution calling for the creation of two states. Neither did this demand appear against the backdrop of the on-going battle between secularists and religious conservatives over what constitutes "Jewish" in the Jewish state, nor against the backdrop of the controversy sparked by the appeal launched by the national democratic trend among Arabs in Israel for a state that belongs to all its citizens. However, the internationalisation of the question regarding the character of the Israeli state since the introduction of the roadmap and the Aqaba summit makes it all the more imperative to examine all the above questions, including the "Jewishness of the state," and its relationship with democracy and with the Arab Palestinian citizens of that state. These citizens are there not by virtue of the Zionist Law of Return to which all the state's Jewish citizens, current or prospective, are entitled, but because they were the indigenous inhabitants who had managed to remain after the majority of their fellow countrymen were driven out in 1948.

The wonder at the Israeli demand for recognition of its Jewishness, which is symptomatic of a spreading fever in Israeli domestic politics, as we will see further on, is unfounded. To better understand why, let us first examine this reaction among what I term the conventional Israeli right. Specifically, we will see what a prominent exponent of this hue of the Israeli political spectrum, Likud MK Dov Shilansky, had to say in 1985 during the discussion of the amendment of the Basic Law: the Knesset. The focus of discussion was the addition of section 7a, which prohibits the participation of an electoral list in parliamentary elections if "its objects or actions, expressly or by implication, include one of the following: (1) negation of the existence of the State of Israel as the state of the Jewish people; (2) negation of the democratic character of the State; (3) incitement to racism."[9]

Shilansky, who would later become Speaker of the Knesset, could not conceal his surprise at the proposed amendment. He said, "Mr. Speaker, it seems to me that there is no other country in the world whose parliament would discuss whether or not a party or a group of individuals who denied the basis of the existence of the state should participate in its parliamentary elections. No one in their right mind could imagine it. There is no need for a discussion of this sort. Yet, we are having one. Perhaps we have yet to grasp the great historical achievement. A Jewish state has been created in the land of Israel. Gentlemen, open your eyes. The dream has come true. We have a state. The dream of generations has been realised. We have a state, just like the French have a state, and the British have a state, and the Dutch have a state. So let's think like a normal people, a people attached to their country. Do you think that in the French, British or Dutch parliament or the parliament of any other country in the world there would even arise the possibility of a party that denied the foundations of the state or its mere existence?"

At first glance the MK's surprise seems genuine and ingenuous. A sane person would, in fact, think that such a discussion was proof of a lack of self-assurance and confidence in the nature of the state. A debate of this sort would indeed be unimaginable anywhere else in the world (although one can observe that he only mentions European nations, rather than Asian or African nations, which are, for example, prone to bloody conflicts over power, and where  conflicts assume the form of an intertribal fights over the identity, definition, and even existence of the state. Therefore, when he asks his fellow MKs to open their eyes to the dream that has become a reality, one would logically conclude that Shilansky instinctively opposed the amendment precisely because of its implications regarding self-confidence, and the reality of the existence and nature of the state. But we quickly discover that our logic is deceptive, for the MK takes what we had first thought was an instinctive desire to caution against a display of self-doubt, turning it into a display of wonder that there could even exist parties that call the foundations of the state into doubt, and, in the end, he not only appeals for the passage of amendment 7a, but also for it to be reworded to make "recognition of Israel,  the state of the Jewish people in Eretz-Israel" obligatory for all electoral lists seeking to participate in parliamentary elections.[10]  The condition that Shilansky proposed insists upon recognition of the entire body of Zionist ideology.

 The Knesset debates on this amendment have furnished sufficient material on Israeli political culture to entertain us for years to come, but a brief overview of these discussions is useful. As it was first put to the Knesset, the amendment bill cited "refusal to recognise the state of Israel as so designated in the Declaration of Independence" as grounds for prohibiting a list from participating in elections. In its second and third readings before the Constitution and Law Committee, it was revised to explicitly prohibit the participation of any list that, "by its objects or actions," "negated the existence of Israel as a state for the Jewish people." This Basic Law was passed in 1985, and remained until 2002, when. Section 7a was amended further to bar those who directly or indirectly "support armed struggle of an enemy state or people against the state of Israel."[11] In addition, in order to bring it in line with "Basic Laws" passed in 1992, it also stipulated that prospective parties and candidates could not deny the existence of the Israel "as a Jewish and democratic state." Note that the 2002 amendment merged the attributes "Jewish" and "democratic" into a single phrase whereas the 1985 version had listed them in two separate points, "(1) negation of the existence of the State of Israel as the state of the Jewish people," and "(2) negation of the democratic character of the State.".

Evidently, in the early 1990s, Israeli legislators began to feel the need to offset the formal expansion of liberalisation in the domain of civil rights, as exemplified by the addition to the penal code of a provision prohibiting racism, and the point added to Section 7a of the Basic Law: the Knesset banning the participation in elections of a list that engages in incitement to racism. The counterweight took the form of legally entrenched reminders of the definition of Israel as a state for the Jewish people. What must have really triggered a mounting fear within the dominant Zionist political culture was the expansion in the legal application of democracy by means of the two Basic Laws that were introduced in the early 1990s: Freedom of Occupation and Human Dignity and Liberty. If the liberal rights enshrined in these laws were taken to their logical conclusion, it would inevitably come at the expense of "the state of the Jewish people," or give rise to interpretations of Israeli democracy that were at odds with the "essence," identity, and image of the state. In other words, there was instinctive sense, which does not always express itself clearly, of a conflict between the Zionist ideology of the state, democracy, and of the need to cap the processes of liberalisation and democratisation. A salient manifestation of this sense was the incorporation into the legal text of the formula "Israel as a Jewish and democratic state," which has since become the sine qua non for the passage of any Basic Law.

In 1949, after having decided not to fulfil its assigned task of drafting a constitution for the newly created state, the Constituent Assembly declared itself the "First Knesset"; from that point on, this Knesset and its successors assumed the task of promulgating "Basic Laws" as the need arose. The result was a kind of gradual and continuous process of drafting a constitution with each new Basic Law adding to its successive chapters. They fall into two categories. One we might term metaphorically procedural, which is to say concerned with the processes of administering the state and its institutions even though it contains and builds on national values and purposes. The other would be termed ethical, pertaining to the aims and purposes of the state, the values upon which it is built, and civic rights though it also includes procedural and regulatory aspects.

Rav Meir Kahane, founder of the racist Kach movement, was outspoken in his criticism of the contradiction between the democracy of the state, which he opposed, and the Jewishness of the state, which he supported, saying that a Jewish state could only be a state ruled by Judaic law. Kahane took the meaning of the "Jewish state" to the logical conclusion of any consistent interpretation of this term. His party won a sufficient following to earn him a seat in the Knesset. As the Israeli establishment strove to wash its hands of him by preventing him from running again,[12] it strengthened its dual resolve to eliminate racism and to merge the Jewish and democratic attributes of the state. 

The Declaration of Independence, the Law of Return and Citizenship:

The Israeli Law of Return rests on the idea that Israel, in aim and conception, is the state of the Jewish people. The Law of Return is the practical affirmation of this and a means to fulfil it tangibly. The same applied to the Proclamation of Independence before the Law of Return. The Supreme Court approved this document, and cited it as a basis for constitutional law at the time when the Central Elections Committee barred Al-Ard (The Land) Movement from participating in elections. In his ruling upholding the committee's decision, Justice Agranat, one of the most influential Israeli Supreme Court judges, said, "Israel is not just an independent sovereign state. It was established as a Jewish state on the land of Israel, because its creation occurred, above all, by virtue of the natural and historic right of the Jewish people to live, like any other nation, independently in their own sovereign state."[13]  The paragraph was lifted almost word for word from the Proclamation of Independence which thereby acquired constitutional force in the opinion of Israeli liberals[14] though this view is not shared by the Israel right. Supreme Court judges have since frequently quoted Agranat's statement to substantiate their rulings, especially before the 1985 Knesset legislation banning any party from participating in elections if "its objects or actions, expressly or by implication" negated the state of Israel as "a state for the Jewish people," and before 1992 when the Knesset began to routinely incorporate the formula "Jewish and democratic state" into the Basic Laws. Among the common allusions to this citation, before the Knesset began codifying the nature of Israel, we come across the precisely worded remarks of Justice Dov Levine with regard to the appeal against the Central Elections Committee's decision to allow the Progressive List for Peace to participate in the 1988 elections.[15] Levine sided with the minority opinion in favour of overturning the decision. He pointed out that "the essence of the state is that it is a Jewish state and its system of government is democratic."[16] The state is Jewish in essence, democratic in form. Justice Barak goes a step further to place the contest between the left and right, as well as between the liberals and conservatives in Israel, within the framework of the same ideology. Echoing his colleagues, Dov Levine and Menachim Elon, on the same decision, he said, "We are a young state in which an ancient people returned to its nation. The state of Israel is the realisation of the aspirations that the Jewish people cherished for generations for the revival of its ancient history, the beginning of redemption and the realisation of the Zionist vision. Deep is the religious, national and historical political bond between the people of Israel and the land of Israel as well as between the Jewish state and the Jewish people."[17] Note how Barak legitimises Zionist messianism and affirms that the Zionist bond is, in practice, both a religious and political one. To him there is no difference between a "Jewish state," a "Zionist state," and a "state for Jews." He lumps all these terms together in his enumeration of the components of Israel's historic legitimacy. This synonymy is taken for granted in Zionism. Accordingly, the Israeli Supreme Court is not just Israeli. In both its liberal and conservative facets, if we can apply this labelling, it resolves ideological questions in favour of Zionism. It is a Zionist court.

Some liberal democrats persist in differentiating a "state for Jewish people" from a "Jewish state." To them, the former denotes a nation state in which the Jews, like the people of any other nation, can exercise the right to self-determination and sovereignty. The "state for the Jews" is also inherently a democratic one. This is how Professor Asa Kasher, professor of philosophy at Tel Aviv University, interprets the term: "The idea that Israel is a state for the Jews and the idea that Israel is democratic are founding ideas for the state of Israel. Any essential change in either of them would lead to a radical change in the identity of the state, in its moral stature and in the fabric of its relationships between it and its citizens and between it and the Jewish people. It is useful to mention that the term 'state for the Jews' had once been more prevalent than the term 'Jewish state.' I prefer 'state for the Jews' which signifies the relationship between the state and the community of Jewish people who  presume to find in it the possibility of enjoying political freedom without fear of persecution by a foreign authority and free of the dilemma of the power of a different majority.[18]  The term 'Jewish state' invites interpretations pertaining to a specific essence of the state - a so-called 'Jewish' essence. Many such interpretations have been forthcoming and they are dangerous in many respects."[19]  Kasher naturally fears that the term "Jewish state" will lead to religious interpretations that could give Judaic law a greater hold over people's lives, which is the intent of the religious parties when promoting the concept of the "Jewish state." His semantic argument falls squarely into the debate over the role of religious law and the separation between religion and the state, especially as pertains to individual freedoms and personal status issues. The debate and its associated conflicts ubiquitously pervade political, legislative and judicial life in Israel.

Ruth Gavison, professor of law, offers another interesting example. Although in the past she espoused liberal ideas, around a decade and a half ago she shifted to the extreme right in her affirmation of the Zionism of the state and her defence of Jewish identity policies.  She opposes the intervention of the Israeli Supreme Court in questions of undemocratic legislation. In her opinion, legislation reflects the Israeli standards and values that prevail among the majority and the court has no right to impose the contrary.  Gavison is a secularist, but she believes that the Jewishness of the state must consist of more than just a Jewish majority; it must have a Jewish substance.

This substance resides precisely in the state's power to enable the Jews to exercise a secular Jewish identity and not just a religious one. Such a possibility does not exist in the diaspora, in her opinion.[20] In the diaspora, secular identity can only be assimilationist and Jewish identity can only be religious. Jewish religious identity and Jewish secular identity, in the nationalist sense, then, can only be possible in Israel as a nation state. In all events, Gavison advocates the idea of a non-religious Jewish national identity, a proposition that accords with the thinking of Yossi Beilin, and other leaders of the Zionist left who believe that Jewish identity is in a predicament in its current state in the West. Hence their attempts to invent secular forms of conversion, a process that applies nationalist criteria, such as serving in the Israeli army, instead of religious conversion to Judaism as a basis for granting citizenship. Not surprisingly, the idea has lent itself to wit. In colloquial Hebrew, the word for mother is "em." The joke goes that the secular test of Jewishness is not the Jewish mother ("em yehudia") but the "M-16." The Zionist left's alternative to religion as the basis of Jewish identity is, indeed, military service, as well as  recognition of the Jewish reform trends that adapt Jewish identity to life in the West and facilitate conversion. The rise of the Israeli religious right, and the spread of identity politics, proves how marginal these ideas are. Moreover, attempts to promote them generally lead to the fusion of the two criteria, which is to say to an amalgamation of Jewish religious identity and militarism. Contrary to what the Zionist left had expected throughout the 1980s and 1990s, Israel has not become more Israeli and less Jewish; it has become both more Israeli and more Jewish (taking into account, of course, the changes in people's perceptions of Judaism and its practices).

To better understand the relationship between the Jewishness of the state as a state for the Jews and its concept of citizenship, it is useful to take a look at the speech by Israel's first Prime Minister, David Ben Gurion, when introducing the Law of Return in 1950:

"... But the state of Israel differs from other states both in the causes of its revival and in the purpose of its existence. It rose only two years ago, but its roots are in the distant past and it feeds on ancient sources. Its rule is limited to its inhabitants, but its gates are open to every Jew wherever he may be. This is not a Jewish state merely because Jews are the majority of its population; it is a state for Jews everywhere and for every Jew who wants it.

"On 14 May 1948 this new state was not established as something out of nothing. It was a return to a former glory, 1,813 years after the destruction of the independence of Israel, seemingly forever, in the days of Bar-Kochva and Rabbi Akiva. The causes of the creation of Israel were not just the immediate, direct acts which preceded the Declaration of Independence."[21]   

 Ben Gurion thus states that Israel is not the state of the Jewish majority that inhabits it, or a manifestation of its right to self-determination, as embodied nationally in statehood. It is a Jewish state by virtue of being a state for Jews everywhere. Asa Kasher holds that the state of Israel is purely the product,and "crowning," of contemporary Zionist nationalist activity. The secular Ben Gurion, who seems to don the kippah more than Kasher, disagrees and maintains that this is not sufficient to appreciate the meaning of Israel as a state for the Jewish people. He is a more forthright Zionist in his acknowledgement of the convergence between religious and national identity, which is why he takes us 1,813 years back into the past in order to unearth the sources of the modern state. So, even to a secularist like Ben Gurion there is no real difference between a "Jewish state" and a "state for the Jews." The reason is perfectly obvious. At the apogee of its secularism, Zionism never managed to come up with a secular definition of Jewishness to contrast with the religious definition of this affiliation. From the Zionist perspective, a person who is Jewish nationally is also Jewish denominationally. And who has the ultimate say on matters of religious affiliation if not the religious establishment?

Professor Yeshayahu Leibowitz frequently attacked Ben Gurion for failing to promote the separation between religion and the state in Israel, and charged that Israel's founding father sought to wield the religious establishment as his political tool. However, this argument hardly exhausts the causes of the Israeli anomaly to the modern state. The decision was not a purely personal and utilitarian one; it emanated from a structural condition. How can religion be separated from the state, or the state for Jews from the Jewish state, when Jewishness determines citizenship by means of the Law of Return? As long as Jewishness signifies more than just the symbols of the state or its historical cultural source (as the liberals would like to believe) then religion and the state cannot be separated in Israel.

The crux of the issue is not solely the nature of the national community that regards Israel as its national state in the Zionist sense, but also the nature of the right of citizenship in that state. The Law of Return of 1950 makes this bit very clear:

"1. Every Jew has the right to immigrate to this country as an oleh."[22]

"4. Every Jew who has immigrated into this country before the coming into force of this Law, and every Jew who was born in this country, whether before or after the coming into force of this Law, shall be deemed to be a person who has come to this country as an oleh under this Law."

But who is a Jew?

The above-mentioned Law of Return volunteers a definition:

"4A. The rights of a Jew under this Law and the rights of an oleh under the Nationality Law, (1952), as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion."

"4B. For the purposes of this Law, "Jew" means a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion."[23]

Points 4A and 4B, above, were introduced into the Law of Return in 1968. The amendment was adopted shortly after the Supreme Court adopted a ruling, by a vote of five to four, compelling the Ministry of Interior to register the children of a non-Jewish mother as Jews in the nationality section of their national identity cards. In this particular case, the father was Jewish and the children were brought up in the Jewish faith, spoke Hebrew and had served in the army. Yet Judaic law would not consider them Jews because the mother was a non-Jew. The court ruled that the Knesset should abolish the nationality section in the identity card[24] to avoid the kind of confusion that prevents the registration of Jewish children who are raised as Jews and serve in the army simply because they were not Jews under Judaic law. The Knesset did not heed the court's opinion. Instead, it immediately moved to amend the Law of Return so as to reaffirm the religious definition of Jewish, as we have seen above.

The controversy over "Who is a Jew?" erupted for the first time in 1958. The storm precipitated another precedent, which was the collapse of the Ben Gurion government upon the withdrawal of the Mafdal (National Religious Party) ministers.[25] With the creation of Israel, Jewish identity became an official identity, and, therefore, had to be not only constructed, but also legally defined. The Law of Return, in particular, made it necessary to determine to whom exactly this law applied and to whom it did not. Until 1958, "Jewish" was entered into the nationality section of the identity card, and other Ministry of Interior documents, using the definition of the term under Judaic law. But instructions issued by the Mapai Minister of Interior Israel Bar-Yehuda, after having consulted the government's judicial advisor at the time, Haim Cohen[26] set off a furore in conservative religious circles, which then spread to the Israeli right, who proceeded to turn it into political currency.  The purpose of Bar-Yehuda's instructions was to separate the nationality section of the identity card from the religious affiliation section in personal status documents, so that registration of a person as "Jewish" in the former would be left to individual choice while registration of a person as Jewish in marriage and divorce certificates and other such documents would continue to apply the religious definition.[27] The cabinet approved the minister's instructions on June 22, 1958, but with the following caveats: a person who registered himself as Jewish on the identity card could not be an adherent of another religion and, in the event of the registration of a child, the parents had to officially declare the child Jewish. Ben Gurion only realised how deep the crisis was when it was too late. After the collapse of his government, the situation returned to what we might call the "status quo," which has since prevailed, in the relationship between religion and the state. The realisation had struck home that this could only be altered by a unanimous consensus, for a decision taken by a mere majority could precipitate a dangerous social, political and cultural rift in society.

Various proposals were put forward for a compromise between abolishing the nationality section from the identity card and distinguishing between Jewish and "Jewish by adopted (or acquired) nationality." It is useful, here, to read why Ben Gurion objected to such a compromise in the form of a proposal to allow "Israeli" instead of "Jewish" to be entered into the nationality section of the identity card, if only as a tactical measure: "A generation was born here that is largely not religious. If we wrote Israeli only, and not Jewish, there would be a danger. A person has to know that he is Jewish. We must fix it in his heart that before all else we are Jews, descendants of the Jewish people. This is why we should not put Israeli only in the identity card. We have to put in Jewish."[28]

Naturally, the history of the question of who is a Jew closely overlaps with the history of the Hebrew state. The conflicts it generates are endless due to the continuing impact of this contradiction; as a consequence of the liberal forces attempts to separate Jewish nationalism from religion in individual cases, toward which end they use patriotic nationalist criteria, they, paradoxically negate their own liberalism; liberals, however, are not entirely alone in this. The Supreme Court and the secular Israeli right have also shown sympathy for purely non-religious proofs of national allegiance, such as military service, as a basis of Israeli citizenship. Yet this has only applied to individual cases, and even then the court rarely omitted to append its gesture of understanding with a refusal to officially acknowledge a Jewish identity independent of the religious one. Against this backdrop, and in conjunction with the tensions that arose between Israel and a large portion of the American Jewish community, in particular, over the legitimacy of reform and conservative conversion procedures, the Knesset, in 2002, decided to drop the nationality section from the identity card. Not that this put an end to the debate; it continues to seethe the beneath the surface.

 The conundrum surrounding what constitutes Jewishness has accompanied Israeli political and legal entities from the outset. One of the most important and enjoyable Supreme Court discussions on the matter revolved round the case of Brother Daniel.[29] Born as Oswald Rufeison to a Jewish family in Poland in 1922, he received a Jewish education and joined a Zionist youth movement. Just as he was about to emigrate to Palestine as a Zionist pioneer, the Germans occupied Poland, and not long afterwards he was arrested by the Nazis. He managed to escape, and, following a long series of adventures evading pursuit by the Gestapo, he found refuge in a convent where he eventually converted to Christianity. Later Rufeison studied for the priesthood and became a monk in 1945. However, he always insisted that he had only changed his religion and that in his national consciousness he remained a Zionist Jew who had cherished the dream to immigrate to Palestine where he could serve in a monastery. In 1958, he acted on this wish. But after arriving, the Israeli Ministry of Interior rejected his application for citizenship under the Law of Return, and refused to register him as Jewish on a national identity card. The refusal was based on a government decision issued on the 20th of July, 1958, stating that a person could be registered as Jewish "only if he honestly declared that he was Jewish and was not, simultaneously, a member of another religion."

After a long and very entertaining discussion, the court rejected Rufeison's appeal against the minister of interior. Its reason was very simple: a person could not be Jewish in terms of national identity and an adherent of a non-Jewish faith at the same time. The issue was thus settled for good in Israeli jurisprudence. We could offer dozens of other examples, but the above is historically the clearest as it provides a rare modern instance of a person who converted to another religion by free personal choice, but who simultaneously was determined to adhere to what he regarded as his national identity, proof of which was his undying commitment to Zionism. He was of Jewish origin, even according to Judaic law, and he was thoroughly Zionist ideologically, but his application for national affiliation as a Jew was turned down because he had converted. The situation in Israel is crystal clear. Non-Jews cannot be Jewish unless they convert to Judaism and Jews cannot remain Jewish if, by their own free will, they convert to another religion.

The Jewish state: its early beginnings

The secular Theodor Herzl, author of The state of the Jews: a modern attempt to solve the Jewish question (note that he used "state of the Jews" not Jewish state), never thought to ponder what might constitute the Jewish nature of his proposed state.  To him, this state was to serve as a means for solving what he regarded as a national question, namely the Jewish question, and his definition of it did not go beyond there being a Jewish majority who could regard it as their nation home. He does not discuss the quality of its Jewishness, and his book offers no details on what the Jewishness of the state might mean. Herzl envisioned a European-like state with a Jewish majority as a national expression for the Jews.  Such a state, he wrote, would enable the Jews to become a people like the peoples of Europe. Vladimir Jabotinsky, another secular Zionist pioneer, went no further. When asked by the British Royal Commission of Inquiry in 1936 what was meant by the term, Jewish state, he answered that it was a state inhabited by a Jewish majority. Like Herzl, he did not try to define or delineate a Jewish essence or character for the Jewish state.

Herzl makes his secularism explicit in The State for the Jews, as he does his loathing for religious Jews, which he expresses unreservedly with blatantly anti-Semitic adjectives and epithets. But even he, as staunchly secularist as he was, could not come up with a new definition of Jewishness, or open a new avenue to this "nationalism" other than religious affiliation. At the same time, his very secularism stirred resentment and antagonism among religious Jews, to whom the secularisation of religion through its transformation into a modern nationalism meant the end of the distinctiveness of this people as God's chosen people whose state He would establish with the coming of the Messiah. Herzl saw a people like other peoples. Religious Jews wanted the "people of the Torah," the "people of the Sabbath." To them, accepting a secularist Jewish state came harder than living in a secular state founded by "others." The former embodied a real and direct negation of the Jewish state as it was divinely intended. It was not the secular state, in the abstract, that posed an antithesis to the Jewish faith, in their opinion, but the Jewish secular state.

Later, as we know, the situation would change radically. The religious parties would eventually campaign vigorously to impart a religious Jewish substance to a state whose creation they had originally opposed. This gave rise to a self-feeding cycle: in their quest for political influence, the religious parties had to offer public political programmes and services consistent with the spirit of their party platforms. The pursuit of political agendas and influence demands the pursuit of political influence in the state which, in turn, necessitated that the parties behave as members of the Zionist state. This vicious cycle led to the Zionisation of most of the religious parties within the framework of the state at the level of the day-to-day grind of political pragmatics. It was a gradual process riddled with tensions and crises, but it was on-going and developing in the direction of the state's Zionist ideology. Naturally, there was a minority of religious Jews, as well as one religious party, "HaMezrahi," that espoused Zionism from the outset, but the trend gained impetus and expanded rapidly upon, and after, the creation of the state.

Therefore, too, if we return to Ben Gurion's Knesset address on the Law of Return we find that according to him it was this Jewish identity that created the state, rather than the reverse. It is the basis of Israeli citizenship, not the reverse: "The Law of Return is one of the source laws of the state of Israel," he said. "It embodies a central purpose of our state, the task of ingathering exiles. This law states that it is not this state that grants Jews from abroad the right to settle in it, but that this right is inherent by virtue of one being a Jew, if one wishes to settle in the country."

This right precedes the law, and no Israeli legislative act can nullify it. The Law of Return simply put down on paper the innate right of Jews, wherever they may be, to settle in Palestine. Then, Ben Gurion began the verbal gymnastics he needed in order to reconcile this "right" with the principle of equality. Equality, in his opinion, is a condition that exists "in" the state. However, this "right," which is legalized by the state, was antecedent to the state.[30]  "...it is this right which built the state of Israel. This right originates in the historical and uninterrupted bond between the people and the nation. And the law of nations has recognised this bond in practice."[31]

Of course, the "law of nations" or international law, here, refers to the Balfour Declaration, which was incorporated into the mandate for Palestine that the League of Nations conferred upon the British. It is doubtful that he could have had the United Nations partition resolution in mind. Although this resolution uses the terms "a Jewish state" and "an Arab state" in Palestine, it affirms the full and unmitigated citizenship of the inhabitants in each state, as long as they do not opt for citizenship in the other state on the grounds of their feelings of national affiliation. Under the Partition Plan, there is no difference whatsoever between Arab and Jewish citizenship in the Jewish state. Both are derived from their residence in the area that was to become a state, and not by virtue of some "right to return," or a historic bond, religious or otherwise. As is well known, if the Arabs had not been driven out of the area designated for the Jewish state, and if the Arab villages that existed within the designated borders had not been destroyed, the Arab residents would have constituted 45 per cent of the population of the Jewish state at that time. When the Zionists accepted this plan, they made no attempt to reconcile this demographic reality with the definition of a Jewish state or even to justify accepting the plan. The decision to create two states, one Jewish and the other Arab, was a purely political one.[32] Zionist leaders exploited this decision politically as well, but used it towards the realisation of their ideological project. No Zionist in our day and age could ever imagine a Jewish state in which half of the population is Palestinian, yet that is what the partition resolution effectively called for, and what was accepted by the Zionist mainstream at the time.

The Israeli proclamation of independence switches back and forth between "the Jewish state" and "the state of the Jews" several times. This document is not law, nor was it adopted as law. However, it has acquired concrete and authoritative value in the legal and constitutional jurisprudence of the state, as we discussed above. It opens by establishing an unbreakable connection between the religious bond and political and national rights: "The land of Israel was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. Here they first attained to statehood, created cultural values of national and universal significance and gave to the world the eternal Book of Books. After being forcibly exiled from their land, the people kept faith with it throughout their Dispersion and never ceased to pray and hope for their return to it and for the restoration in it of their political freedom."

Further justification for the right of Jews to return to Israel in the proclamation of independence came initially from the Balfour Declaration and the Mandate of the League of Nations, as embodiments of the recognition for the "historic connection between the Jewish people and the land of Israel" through international law; after this, the idea was further solidified by the catastrophe that befell the Jews in Europe. The section that employs modern nationalist rhetoric and that liberal and secular nationalists like to cite comes after all the other arguments are laid out, including the religious ones mentioned above. It states, "...this right is the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign state. Accordingly we, members of the people's council, representatives of the Jewish community of Israel and of the Zionist movement, are here assembled on the day of the termination of the British mandate over Israel and, by virtue of our natural and historic right and on the strength of the resolution of the United Nations General Assembly, hereby declare the establishment of a Jewish state in the land of Israel, to be known as the state of Israel."

As for the paragraph that combines the Jewishness of the state with its democratic nature, and which Israeli lawmakers have relied on repeatedly for the same purpose in legislation, it reads: "The state of Israel will be open for Jewish immigration and for the ingathering of the exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations."

Yet this paragraph, which makes Israel appear as though it is a nation state that expresses the right of self-determination for its people and that grants full equality to all its inhabitants, only comes after the affirmation of Jewish religious rights as political rights. In fact, even in this section, the founders of the Zionist state reaffirm the state's function of "ingathering," which inevitably begs the question of "who is a Jew?" as we observed above, after which it adds the commitment to freedom, justice and equality "as envisaged by the prophets of Israel."[33]

On the subject of the use of the double-barrelled attribute "Jewish and democratic," Aharon Barak, the most famous and influential chief justice in Israeli history, had this to say:  "We must recall that the stature that has been accorded to the values of the state as a Jewish and democratic state is of a constitutional and morally transcendent nature above the law. It will nullify any ordinary act of legislation that constitutionally touches upon a human right, even if its aim is acceptable and even if it does not exceed the required extent, if it does not accord with the values of the state of Israel as a Jewish and democratic state."[34]  Also, in his opinion, it is society with all its spiritual and intellectual energies that should determine the meaning of Jewish and democratic, and how to balance the two values. The court operates in the framework of the communal unanimity and expresses that unanimity.[35] Here is how Justice Barak summarises what this unanimity should be when it comes to an interpretation of the Jewishness of the state:

  1. A Jewish state is the state of the Jewish people, a state to which every Jew has the right to immigrate and the fundamental value of which is the ingathering of Jews.
  2. A Jewish state is a state whose history intertwines and merges with the history of the Jewish people. Its language is Hebrew and its national days reflect its national revival.
  3. A Jewish state is a state in which Jewish settlement in its fields and cities is its highest priorities.
  4. A Jewish state is a state that commemorates the memory of the Jews who were massacred in the holocaust and forms a solution to the problem of the Jewish people without a homeland or independence by means of the revival of the Jewish state in the land of Israel. [36]
  5. A Jewish state is a state that develops Jewish culture, Jewish upbringing and love for the Jewish people.
  6. A Jewish state is a state that realises the age-old dream of the redemption of Israel. [37]
  7. A Jewish state is a state that espouses the values of freedom, justice, righteousness and peace enshrined in the legacy of Israel.[38]
  8. A Jewish state is a state that draws from religious traditions. The Torah is its primary book and the prophets of Israel are its ethical foundation.
  9. A Jewish state is a state in which Judaic law plays an important role and in which the laws of marriage and divorce are based on the law of the Torah.
  10. A Jewish state is a state in which the values of the Torah of Israel, Jewish heritage and the values of Judaic law are among its fundamental values.[39]

It is not easy to discern Justice Barak's liberalism and secularism in these definitions. However, in spite of these self-professed traits and his insistence on a consensus, and to the detriment of its democratic character, there is a very strong inclination in politics and courts, and among a broad segment of the public, for a stricter definition of the Jewishness of the state. The trend is to be seen among the critics of the Supreme Court who maintain that a parliamentary majority is an expression of the consensus, that the court has no right to overturn on humanitarian or civil rights grounds. Thus, in the conflict over the increasing share of the Jewish attribute, and the dwindling share democratic attribute of the state, the Supreme Court is systematically attacked as though it represents an elite minority that forces its opinion on the parliamentary majority.

Of course the Supreme Court, itself, has had members who espouse views that are sympathetic with this trend. One of its theorists is a former supreme court justice, a former professor of Hebrew law at the Hebrew University and the author of some of the most important works on Jewish and Hebrew Law. Menachem Elon calls for a resolution to the question of the Jewish and democratic values of the state, and his definition of the Jewish state is stricter than Barak's. Unanimity, not the values adopted or interpreted by the Supreme Court, must be the basis of all instructions of a constitutional nature. He affirms the special nature of the Jewishness of the state, in contrast to the liberal assertion that Israel is Jewish just as France is French and Britain British. "This definition is particular to the judiciary in the state of Israel and there is nothing that is like it or corresponds to it in any democratic judiciary in the world," he says. "We have no definition of American and democratic values, or the values of a French and democratic state or a Canadian and democratic state. The constitutions of those states speak of democracy 'that aspires to freedom' and not of French, Canadian or other such values. This is not the case of the state of Israel where the concept of 'Jewishness' expresses the very essence of the state."[40]  He further stresses - in his capacity as a judge at odds with Barak - how much the court needs Hebrew and Judaic law, in the event of gaps in the law in particular. He accuses Barak of having substituted secular values for the values of Judaic law for this purpose, and, thus, of having breached the Basic Law: the Judiciary, adopted in 1980, which explicitly enjoins the court to use the values of Judaic law in the event that existing Israeli law does not provide an answer to questions submitted to judicial arbitration.[41]

A state ruled by law

The Jewishness of the state was the instrument that enabled the passage of laws to facilitate the confiscation of Arab land and property. After all, Jewish settlement and the ingathering of world Jewry are the fundamental values, and basis of the welfare, of a state that defines itself as Jewish, and whose most cherished article of legislation is the Law of Return. The ends justify the means, even if they conflict with the rights of non-Jewish citizens, such as land usage and property rights.  Jewishness of the state, as the aim and foundation of its existence, is why Israel refuses the very thought of implementing the right of return for Palestinian refugees, in spite of the fact that it officially approved the UN Partition Resolution, which would have ensured that nearly half the citizens of the Jewish state would have been Arabs if Israeli militias not systematically driven the inhabitants beyond the designated borders of that state, and then gone on to occupy the land designated for the Palestinian state as well.

The Jewishness of the state was the inspiration for the World Zionist Organisation-Jewish Agency law of 1952, which grants these two historically different  international Jewish organisations and their affiliate bodies, such as the Keren Kayemeth (the Jewish National Fund) and the Keren Heyesod (Palestine Foundation Fund  - the financial arm of the WZO), special status. Moreover,  in spite of the fact that they are not official state agencies, it provides them with special legal powers in matters pertaining to land acquisition, Jewish settlement and the absorption of immigrants, the tasks that form the very raison d'être of the Jewish state.

Sustaining and enhancing the Jewishness of the state has and continues to serve as the moral underpinning of a whole slew of racist legislation. Because Israel is a state ruled by law, as Prime Minister Ariel Sharon informed his audience[42] in that same Aqaba conference in which President Bush affirmed America's commitment to the security of Israel as a Jewish state, the Israeli Knesset felt compelled to pass a temporary provision, the Citizenship and Entry into Israel Law, which was adopted on its first reading on 18 June 2003.[43] In general, the law prohibits the granting of Israeli citizenship and residence permits to inhabitants of the West Bank and Gaza who are married to Israeli citizens (meaning Arab citizens of Israel), adding in its first paragraph that this will override the provisions of any other law. The new law, which was supposed to remain in effect for a year, thus decimated, in one fell swoop, all Israeli citizenship laws as applied to the inhabitants of Gaza and the West Bank.

The Israeli government had to submit this law to the Knesset for approval because it is a state ruled by law, which meant it could not simply make do with the decree issued by the former Minister of Interior, Eli Yishai, on May 12, 2002, suspending family unification rights and the processing of applications for citizenship and residence permits on family unification grounds in the event that one of the spouses was a Palestinian from the West Bank and Gaza, regardless of whether the couple had been living together for years and had children. The law obviated any possible confusion. Its further advantage was that it disrupted the already long and complex process of appealing to the Supreme Court against the minister of interior's decree. The Supreme Court, which was never liberal to begin with on matters pertaining to the West Bank and Gaza, cannot overturn a law as easily as it can a ministerial edict, especially in a climate where it is under comprehensive assault by the religious and ultra-right in parliament, and in the public at large for its "excessive" intervention in the legislative process.

In its third article, the new law permits for the following exceptions:

  1. "The Minister of the Interior is entitled, as conditions may permit, to grant an inhabitant of an area a license to reside in Israel, or a permit to stay in Israel, for a fixed period, for the purpose of work, or in order to receive medical treatment, or for some other temporary purpose - for a cumulative period of no more than three months."
  2. "The Minister of the Interior is entitled to grant citizenship, or provide a license to reside in Israel, to an inhabitant of an area, if he is convinced that the individual identifies with the State of Israel and its goals, and that he or a member of his family performed a significant act to promote the security, economy or some other important matter of the State, or that the granting of citizenship or provision of the license to reside in Israel, are of special interest to the State."[44]

To sum up, the minister of interior can make exceptions for people in need of medical treatment and for Palestinian collaborators.

Life had never been paradise for the reunification of Palestinian families before the law sinceany Palestinian husbands or wives had resided with their spouses in Israel without proper residence permits or identity papers, and without being able to register their children. The processes of issuing a residence permit can take up to five or six years, and, in the end, may not be issued at all.

The official pretext for the law was to safeguard security. An Israeli identity card or residence permit could be used by suicide bombers to enter Israel legally and roam around at will, or so the argument went.  Yet no one who had obtained citizenship or residence rights under the provisions for family reunification has committed a "terrorist" act, and the vast majority of those who have were not connected by marriage to anyone inside Israel to begin with. Ultra-right nationalists of the stripe of Professor Ruth Gavison find such arguments cowardly and hypocritical. She supports the law and regards it as legitimate not on the basis of "ideologically neutral" security exigencies, but on the basis of the Zionist ideological principle that Israel has the right to safeguard its Jewish majority: "Some seek to justify the invocation of [ethnic classification] on the basis of neutral reasons of 'security.' I think that this claim is not persuasive. The real possible justification lays in its being part of the effort of ensuring Israel's future as a state in which the Jewish people can realize their rights to self-determination against the background of the existing conditions in the area at this time. A Jewish state must not discriminate between its citizens, and it also cannot discriminate against those who ask to reside in it, even if the person does not have an entrenched right to do so. But whoever believes that it is justified for it to be a Jewish state, must accept that it is permissible, and maybe even obligatory, for it to maintain the conditions which will allow for its continued existence, as long as they do not harm the rights of others, both those living in it and outside it."[45]  Gavison goes on to recommend that if Palestinian families want to unite, they should do so in their own Palestinian state, and that Palestinian citizens of Israel who want to marry non-Israeli Palestinians should probably take that into consideration beforehand. 

The idea, obviously, is to prevent the increase in the number of Arab citizens in Israel. It is all about the demographics connected with the Jewishness of the state and nothing to do with security concerns, even if these were the ostensible rationale for the law. The security argument rested on a single instance: the suicide bombing of the Matza restaurant on March 31st, 2002 by a young man who had lived in the West Bank, but carried an Israel identity card because his mother was an Israeli citizen.

Racist legislation in Israel gains popular support by means of the type of racist claims that are frequently heard in the relatively more developed countries in which there is strong hostility toward migrant labour. The Arabs, they say, want to live in Israel without any sense of allegiance or obligation, and solely for economic reasons or to obtain services that are unavailable where they are currently living, such as free medical care. Such attitudes and motives are not restricted to Palestinians; they happen to characterise immigration from poorer areas everywhere, including Israel, to wealthier nations. Economic and standard of living concerns would generally have driven the migration from colonies to their colonising countries in the past. However, the fact is that this mode of migration from the occupied territories into Israel was far from common. Rarely did married couples from these areas decide to move to Israel. The most frequent tendency was for Arab spouses from Israel to move to either the West Bank or Gaza after marriage. Admittedly, there was an increased tendency to seek residency in Israel following the partial and complete closures of the occupied Palestinian territories during the early 1990s, following the Gulf war, as the climate of uncertainty spread with regard to freedom of movement and consequent access to the workplace and sources of livelihood in Israel, but this is not new. What is new is the promulgation of a law aimed at totally prohibiting movement of human beings, even for the purpose of marital bonds and family unity. What is new is limiting the freedom of movement and the freedom to choose a spouse solely to those Palestinians whom the state would be willing to accept as an exception to the general rule. But try as it might, Israel cannot control the occupied areas in the colonial manner of keeping them as an impoverished fringe while simultaneously preventing the migration from the fringe to the wealthy centre on racist pretexts. It seems redundant to point to the historical and kinship relations between the Arab citizens of Israel, the inhabitants of the West bank and Gaza, and the Palestinian refugees in Lebanon and Syria, ties that were geographically severed by the truce lines of 1949.

The legislative fever that has swept the Israeli parliament since October 2000 is indicative of an Israeli urge, unrestrained even by the need to keep up appearances and preserve the country's "democratic reputation," to entrench the Jewishness of the state and its Jewish majority in law. Israeli diplomacy has internationalised the question of the Jewishness of the state by insisting that the US and the Palestinians recognise Israel as a Jewish state, and it is campaigning to ensure that this formula acquires international legitimacy by being engraved in agreements, international conventions and, hence, international law. It is a highly contentious subject that has direct bearing on both the Palestinian right to return and the status and welfare of Arab citizens in Israel. It also has a central bearing on the relationship between religion and the state in Israel.

The desperation to impart legal substance and meaning to the Jewishness of the state, and the state for the Jews internally, rather than internationally, is evidenced by 15 blatantly racist bills that were put to the Knesset between 1999 and 2003. The bills variously aimed to amplify the definition of the state of the Jews and the Jewish state, to compel Arab citizens to take an oath of allegiance to the Jewishness of the state, and to force Arab parliamentary deputies take an oath of allegiance not only to the state and its laws, but also to its symbols, flag, and national anthem. There were also proposals for Basic Laws to fortify the rejection of the right of return for Palestinian refugees and to put express limits on the citizenship of the Palestinians in Israel. Most of these bills passed on their first reading with the fanfare that surrounded them boosting the fame and political careers of the deputies that sponsored them.

The trend could not be more obvious. It is a feverish drive to fortify the Jewishness of the state not only against the right of Palestinian refugees to return to their homeland, but also against any attempt to make life awkward for Zionism by expanding the concepts and applications of citizenship and civil and human rights. The fever is so intense that it does not shrink from expressions of flagrant racism.

Conclusion

In the course of the debate over the amendment to the Basic Law: the Knesset, which was at least partially aimed against Meir Kahane, who was embarrassing the Zionist parties at the time by his persistence in interpreting the Jewishness of the state as antithetical to its democratic character; Kahane said, "Zionism was born to create a Jewish state. This is why this motif appears time and again in that pitiful document, the Proclamation of Independence: 'The Jewish people arose,' and, at the end, 'We hereby declare the establishment of a Jewish state in Eretz-Israel to be known as the state of Israel.' Fellow Jews, what is this supposed to mean? How do you define a Jewish state? Any child could tell you: a Jewish state is a state that has a Jewish majority. Only a Jewish majority can guarantee for us independence and sovereignty. Only a Jewish majority can guarantee that we remain masters of this place and determine the fate of our people. Without a Jewish majority there will be no Jewish state. Without a Jewish state there can be no Zionism. However, democracy says the opposite. In democracy there are no Jews and Arabs or non-Jews. In democracy there are only people, human beings; it doesn't care whether they are Jews or otherwise. So there's a contradiction, a war between these two concepts. In 1947 the Arabs opposed the Partition Resolution because they supported democracy. They said, 'There's an Arab majority so let's settle the matter by majority rule.' The Zionist Jews feared democracy and chose partition so that they could establish a state with a Jewish majority."[46]

The Arabs at the time were not democrats, but their demand was undoubtedly more democratic than the colonialist Zionist demand. The problem that Kahane expresses is not that straightforward. For Jews, it makes a difference whether their society is governed by the likes of Kahane, in accordance with Judaic law, or whether the society governs itself democratically, even if only by Zionists. However, beyond these confines, the dilemma as expressed by Kahane is very simple: if Israel wants to preserve itself as a Jewish state it will find itself, firstly, in a state of perpetual contradiction with the indigenous inhabitants of that country, Arab citizens and refugees alike, and, secondly, with democracy and universal humanitarian values.* A modified version of a chapter from Dr. Azmi Bishara's book on society and state in Israel, Min Yahudiyyat al-Dawla ḥatta Sharon: Dirasa fi-Tanāqudāt al-Dimuqratiyya al-Isra'iliyya (From the Jewishness of the State until Sharon: A Study on the Contradictions of Israeli Democracy). Egypt: Dar al-Shuruq, 2004.       

--------------------------------------

  • [1] It appears that the first time a US official spoke of Israel as a "Jewish state" was former US Secretary of State Colin Powell, in a speech he delivered in the autumn of 2001.  While Powell did not mention how this phrase crept into his speech, David Ivry, then Israeli ambassador to the United States, admitted to having a hand in the matter.  See Glenn Kessler, "Defining Jewish State: For many, term has different meanings," Washington Post, 2 October 2010.  
  • [2]Letter from Ben Gurion to Sharett in 1954, published in Erev Shabat , 6 January 1991. A similar  citation testifying to Ben Gurion's belief in the impossibility of separating religion from the state due to the impossibility of separating religion from nationalism is also cited in E. Don Yahiya, "Statism and Religiousness in the Thinking and Policy of Ben Gurion," Mamalakhtiyut ve Datiyut beHagoto ve Mdenyuto shel Ben Gurion, Hatzionut, Vol. 14 (1989),  p. 75. 
  • [3] See: Yosef Shalmon, "Religion and Nationalism in the Jewish National Movement," in Pinhas Ginossar and Avi Barely (Tzionut: Polmus ben Zmanenu), Zionism: A Contemporary Controversy, (Tel Aviv University and Beersheba University Publications, 1996), p. 367.
  • [4]Meaning territorial borders
  • [5] HaMerhaviya, (Otzar HaTiudot HaPolityut) The Treasure of  Political Documents , (Jerusalem 1974), p. 161.  Of course, Ussishkin did not omit mention of how this would serve to protect Western interests against Arab barbarism in the Orient.
  • [6] From the outset of the Zionist settler drive, terms such as ge'ulat ha'damah, ge'ulat hakarka' and ge'ulat ha'fodah  (redemption of the land, of work and of property) have been used to refer to the Judaisation of the land, work and property by means of expropriation or purchase and by replacing Arab workers with Jewish workers  in order to build an economy independent from the Arabs. Religious terms and expressions were used to describe secular and pragmatic contexts, and to give these contexts a spiritual and historic dimension.
  • [7] We have treated this issue more extensively elsewhere.
  • [8] This could be used to refute cultural theories of democracy, since the legacies and attitudes of this majority were presumably non-democratic. Contrary to theory, it seems that democracy doesn't always stem from the so-called political culture of the majority.
  • [9] The point on incitement to racism was aimed at the Meir Kahane movement, ensuring there would be a legal foundation for preventing him from entering Knesset elections. The point on negating the existence of Israel as the state of the Jewish people was intended to provide the legal basis for preventing the Progressive List for Peace from fielding itself in the elections. However, the Supreme Court supplied a very narrow interpretation of this point, and the Progressive list was not prevented from running even after this amendment went into effect.
  • [10]Discussions of MKs' reservations during the second and third readings of the proposed amendment to the Basic Law: the Knesset, Knesset Debates, Wednesday, 31 July 1985.   
  • [11] This amendment was proposed by the government following remarks by this author, which triggered widespread controversy regarding the right of the Palestinian and Lebanese people to resist occupation. Its purpose was to furnish the legal grounds for prosecuting him.
  • [12] Kahane held his Knesset seat from 1984 to 1988, following an electoral victory that exceeded all expectations.  It is still a matter of debate among historians of the Israeli political regime as to whether the regime's motive for banning him from running again in 1988 stemmed from the embarrassment he caused by his racist rants and laws he proposed (which were reminiscent of Nazi laws, such as that forbidding intermarriage between Jews and Arabs), or whether he threatened the conventional right-wing parties, such as the Likud, by encroaching on their constituencies, especially in the poorer oriental Jewish neighbourhoods. I suspect that the two factors were equally operative.
  • [13] Justice Agranot in the Supreme Court ruling on the Al-Ard movement, Yardor vs. Chairman of the Central Election Committee, E A 1/65, HCJ verdicts Vol. 18, p. 31.
  • [14] When Aharon Barak presided over the Supreme Court, the "negation of Israel as a Jewish state" was accorded a narrower definition. The negation had to be absolute and be combined with destructive intent. It had to be proved that a party was actually involved in activities that would jeopardise the state as a Jewish state in order to have it banned from elections. Because this narrow definition required more than just declared aims and statements to find an electoral list guilty of negating the Jewishness of the state, the Supreme Court ruled against banning the Progressive List for Peace from participating in the elections in 1988. It is also what made Justice Heshin vote against the majority in the Central Elections Committee which ruled to ban the National Democratic Alliance (Balad Party) and Azmi Bishara from running in the elections for the 16th Knesset. The ban was later supported by four out of 11 Supreme Court Judges.
  • [15]The list fielded Mohammed Miari and Mattityahu Peled as its first and second candidates. It ultimately did enter the elections and won two seats.
  • [16] Justice Dov Levine on Yahuram Ben Shalom et al versus the Central Elections Committee and the Progressive List for Peace, Supreme Court rulings, Volume 53(4), p. 221. Justice Elon virtually parroted Levine. However, the views of Justice Barak and others differ little. This position made its most recent appearance in the Central Elections Committee's decision to disqualify the National Democratic Alliance and Azmi Bishara. The liberal justice who headed the committee said, "The system of government in our country is democratic. Democracy not Judaic Law prevail. In matters regarding authority, the state and the relationship between the individual and the state the principle of democracy applies, a system of majority rule that rigidly protects individual rights and minority rights... Democracy is the substance, not just the form. However, the character of the state, the soul and the heart of the state, its holidays and its genetic makeup are all Jewish. This is a Jewish state. This is the state of the Jews, the one and only state of the Jews. They have no other state. If persecuted elsewhere they have no other place to turn to.... As I said, its genetic code is Jewish." Central Elections Committee  minutes, 31 December 2002,  p. 592.
  • [17] Aharon Barak on: Ghanem Yasin and Yavin Kakhli  versus the Political Party Registrar and the Yamin Israel, Supreme Court verdicts, Volume 60 (2), p. 52-53. Also, see: Justices Levine and Elon, Yahuram Ben Shalom  et al, op. cit., p. 230 and  p. 271.
  • [18] By "different majority" Kasher means a non-Jewish majority.  It would be useful to examine whether Jews in democratic nations, in which national identity and citizenship fully coincide and in which religion is separate from the state, feel vulnerable to the dilemma of rule by others.  Jewish Americans, for example  would not think that Kasher's notion of being at the mercy of a "different majority" would apply to them, and would prefer, instead, to regard themselves as part of the American people. In addition, the Jews in the US are not seeking recognition for their status as a minority. They are part of the majority.
  • [19] Asa Kasher, "A Democratic State of the Jews" in: Joseph David (ed.), The State of Israel: between Judaism and Democracy, The Israel Democracy Institute, Jerusalem 2000, p. 113.
  • [20] Ruth Gavison, "Democracy and Judaism: Between Conceptual Analysis and Public Discourse" in Joseph David (ed.), op.  cit., p. 308. While Gavison affirms secular Jewish nationalism, she has a strong tendency to lash out at secular Arab citizens who regard themselves as Arab nationalists. To Gavison and her ilk, nationalist thought and feeling in Israel is a Zionist monopoly.
  • [21]  David Ben Gurion, Knesset address presenting Law of Return for discussion, Knesset Debates, Vol. 6 , 1950, pp. 2035-2037. (Translation from the following site: http://books.google.com.eg/books?id=Qxo55svQBNUC&pg=PA219&lpg=PA219&dq=Ben+gurion+
    Knesset+address+introducing+law+of+return+1950&source=bl&ots=
    2RKpSHy5L3&sig=5TiMbm6aOG0HEV2LqnLIAW78tvU&hl=en&ei=
    fVz1TJGuGMO7hAe34dyIBg&sa=X&oi=book_result&ct=result&resnum=
    3&ved=0CCEQ6AEwAg#v=onepage&q=Ben%20gurion&f=false).
  • [22]  Note on the translation: oleh (plural: olim) means a Jew immigrating, into Israel; aliyah means immigration of Jews.  Translation taken from: http://www.jmcc.org/Documentsandmaps.aspx?id=757
  • [23] Oddly, the kinship connection that would entitle a Jew to citizenship, in accordance with the above-mentioned degrees of kinship, ceases to apply when the relation voluntarily relinquishes his religion, even when entitled to citizenship by virtue of the Jewishness of a relative. In other words, he is being punished secularly for voluntarily leaving the Jewish faith.
  • [24] Supreme Court ruling 58/68, Shalit versus the Minister of Interior et al., Supreme Court rulings, Vol. 23 (2), p. 447 (in Hebrew).
  • [25] Among the many studies on this subject, see: Eliezer Don-Yehiya "Religion, National Identity and Politics: The Crisis over the 'Who is a Jew' Issue" (in Hebrew). In Mordechai Bar-On and Zvi Zameret (eds.), The Two Banks of the Bridge: Religion and State in Israel's Early Years,( Shnei Everey Hagesher: Dat Umedina Bereshit Darka Shel Yisrael). Jerusalem: Yad Yitzhak Ben Tzvi, 2002, pp. 88-143.  
  • [26] Ibid., p. 92. The minister's instructions were in response to a circular issued by the head of the registration department, without the minister's knowledge, stating that registration of Jews in the identity and nationality section had to apply the definition of Jewish in Judaic law.
  • [27] Ibid., p. 93.
  • [28] Ben Gurion, from Mapai faction in Knesset and the party secretariat. Then Minister of Justice Pinhas Rosen had presented the proposal. Ibid,  p. 97. It was not until 2002 that this compromise was applied.
  • [29] Supreme Court sitting as the High Court of Justice, ruling 72/62: Oswald Rufeison versus the Minister of Interior, Supreme Court rulings Vol. 16.
  • [30] When one recalls that this man was the head of a government and was addressing parliament with the purpose of promoting an act of legislation one can only regard this as an exercise in political metaphysics, if not political alchemy.
  • [31] Ben Gurion, op. cit.
  • [32] Under the Partition Resolution, the Arab state was to consist of 11,000 square kilometers, or 42 percent, of mandate Palestine, and the Jewish state would have been made up of 14,900 square kilometers, or 56 percent, of that area and 2 percent of the area of Jerusalem. In the Arab area, there were 725,000 Arab residents and 10,000 Jews. In the Jewish area, at the time, there were 498,000 Jews and 407,000 Arabs; in Jerusalem, there were 105,000 Arabs and 100,000 Jews.
  • [33] Zionist liberals tend to foreground the prophets' moral and humanitarian vision, which form a part of universal     human heritage and to background other sections of the Old Testament, such as Creation, Kings and Judges, which are very different in nature, both in terms of their pertinence to Jewish tribalism and their emphasis on religious laws.
  • [34] Lecture by Aharon Barak at the International Conference on Jewish Studies, 1 August 1997, in: Ron  Margaliot (ed.), Israel as Jewish and Democratic State, Jerusalem 1998, (Hebrew), p. 9.
  • [35] Ibid., p. 10.
  • [36] This last phrase was taken from the Israeli Proclamation of Independence.
  • [37] The phrase also echoes the Proclamation of Independence.
  • [38] This refers, in particular, to the Talmud and other sources of Judaic law and jurisprudence..
  • [39] Aharon Barak in: Ron Margolin (ed.), op. cit., p. 11
  • [40] Menachim Elon in: Ron Margolin (ed.), op. cit., p. 17.
  • [41] Ibid., p. 19.
  • [42] Sharon's remarks in this regard came in the context of his affirmation of the need to dismantle what he called the illegal Jewish settlements as opposed to the settlements that were considered legal under Israeli law.
  • [43] In 2007, there was a move to replace this "temporary" provision by a permanent one.
  • [44] This is a roundabout way of sanctioning the ministry of interior's power to grant residency to Palestinians that collaborate with the occupation authorities.
  • [45]  Ruth Gavison, "Family Unification in Two States," Yediot Ahronot, 5 August 2003. Translation taken from: http://www.imra.org.il/story.php3?id=17866. One would be hard put to find an honest opinion that was more convolutedly and artfully stated. Gavison justifies violating the right of the indigenous inhabitants who are citizens of the Jewish state to marry the sons and daughters of other indigenous inhabitants of the land in accordance with the same conditions that apply to other citizens. Yet these citizens are not demanding a law of return such as that which applies to the Jewish majority, but only not to be the victims of discrimination in matters pertaining to the residency laws after they marry. However, the ex-leftist law professor justifies discrimination on the grounds of protecting the Jewishness of the state.
  • [46] Meir Kahane's speech during the first reading of the bill to amend the Basic Law: the Knesset (no. 12), and to amend the Penal Code (no. 24), Knesset Debates, 9 July 1985.

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